Law Report: Exam board's decision quashed. Regina v Manchester Metropolitan University, Ex parte Nolan. Queen's Bench Divisional Court (Lord Justice Mann and Mr Justice Sedley), 14 July 1993

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An examination candidate who is found guilty of attempting to gain an unfair academic advantage, rather than the more serious offence of cheating, may nevertheless have the severest penalty imposed on him. However, the examination board, when deciding the appropriate penalty, must have before it all relevant material, including important statements in mitigation.

The Divisional Court quashed decisions of the Common Professional Examination Board of Examiners of the university that the applicant, Damian Nolan, be deemed to have failed his CPE and not permitted to resit them.

The applicant, having obtained a first class honours degree in economics and politics from Cardiff, intended to read for the Bar. He first had to complete the one-year course for the CPE, a stage in the professional training of barristers and solicitors. He sat for the examination in June 1992. He took in with him notes which were spotted by the invigilators.

At an oral hearing before the Faculty Examinations Disciplinary Committee, at which the applicant was present and represented, the applicant denied referring to the notes. Evidence was called, including testimonials and a short report from a psychiatrist. The committee found the applicant guilty of attempting to gain an unfair academic advantage by bringing unauthorised material into the examination. It found there were mitigating circumstances, made no formal recommendations but asked the CPE Board of Examiners to determine the appropriate action or penalty.

The CPE board met in July 1992 but, on advice, rescinded its decision. The board met again in September when it did not have before it all the testimonials, or letter from the consultant psychiatrist. It arrived at the penalty which is now challenged.

Patricia Hitchcock (Morecroft Dawson & Garnetts, Liverpool) for the applicant; David Richardson (Addleshaw Sons & Latham, Manchester) for the university.

MR JUSTICE SEDLEY said that in addition to the offence of cheating provided for by both the Faculty Procedure and the CPE regulations, there was a distinct offence of attempting to gain an unfair academic advantage in the Faculty Procedure.

Although the board knew in principle what function it had to perform in September, it had limited material before it. The applicant had no right to attend and was entirely dependent on what was placed before the board. That did not include some important statements in mitigation.

It behove the board, having rescinded its earlier July decision, to be doubly cautious in what it then did. Its decision was, on any view, a surprising one, suggesting that something material in the applicant's favour might well have been overlooked. There was, therefore, a material failure by the board in September to take into account matters which were incumbent on it to take into account, namely the evidence in mitigation placed before and accepted by the disciplinary committee.

It was for the decision-making body of the university to decide, given the acceptance of the mitigating evidence and the conclusive finding of a lesser offence than cheating, what was the appropriate penalty or disposal for the applicant.

His Lordship was not prepared to hold that it could never be, or could not on the limited evidence before the board, have been a rational or proportionate response to fail a student for something less than cheating. It was for the board, subject to the court's supervisory jurisdiction, to exercise a conscientious judgment on the material before it. The board would now do that on the full body of material which ought to have been before it, and bearing in mind the precise limits and purposes of its function.